Tuesday, 7 June 2011

Two referenda?

Our Liberal 'Democrat' Secretary of not-very-much, Michael Moore (no, not the famous Michael Moore, the other one) thinks we need two referenda to achieve independence. What has he been smoking?

The theory of it starts here: the Westminster parliament, in its Scotland Act, did not cede to the Holyrood parliament the power to hold legally binding referenda. So, says Moore, a referendum held by the Holyrood parliament cannot be legally binding. So, says Moore, we need a subsequent referendum, promoted by the Westminster parliament, to complete the process.

There's a certain amount of sense to it: this much. The first referendum would empower the Scottish Government to negotiate with Downing Street on the terms for independence; and the exact terms of independence are not clear. There are natural resources, financial debts, military forces, foreign embassies, and many other complex issues to apportion. After an agreed apportionment has been made, there's some sense in going back to the people and asking whether they want independence on those terms.

But that's not what Micky Moore is arguing. He's not arguing on the pragmatics, but what he perceives as the legalities. Only the Westminster parliament, says Mouse, can hold a legally binding referendum...

But here's the rub: it can't. It never has been able to. It can't because there's a critical difference between Scottish legal theory and English legal theory. Mouse, being (Northern) Irish, can't really be expected to know this. Under English legal theory, Parliament is sovereign. So no referendum, not even one it has itself called, is binding on the English Parliament. But under Scottish legal theory, the people are sovereign. So any referendum of the Scottish people, even one it hasn't itself called, is binding on the Scottish parliament.

So let's get down to realpolitik: do we need two referenda? The first gives Scotland the authority and the clear democratic mandate to negotiate. For the rump of the United Kingdom to seek to impose unfair terms would be unwise, if not improbable. If an equitable settlement could not be negotiated, then grass roots pressure in Scotland would rapidly ramp up. Finally, no Scottish government is going to accept an inequitable settlement. So if we get to the point of an independence bill, we will have a (reasonably) equitable settlement. In that case, would we need a second referendum? I can't see it. The government have been mandated by the people to negotiate to achieve this end, they've achieved the end, where's the problem?

If the government reached the conclusion that an equitable settlement could not be reached, then I can see a point of going back to the people and say, ok, this is the best we can do, is it good enough? But that's a different issue. That's an issue which arises when negotiation has, in effect, failed. We hope that won't happen.

But for Micky Mouse to tell us, now, that we have to have two, that we have to have two because Westminster is sovereign? Aye, as they say, right.